Downer EDI Works Pty Ltd v McLuckie

Downer EDI Works Pty Ltd brought this appeal against the decision of an Arbitrator who determined that the deemed date of injury for Mr McLuckie’s claim for compensation for skin cancer was 16 March 2011. The Arbitrator found that the disease was a result of the claimant’s employment with various employers, including Downer and another entity, Readymix Emoleum Services Pty Ltd. The dispute primarily revolved around the identification of the deemed date of injury and the employer who was most responsible for the aggravation of Mr McLuckie’s disease. Additionally, the appeal questioned whether the discontinuance of the first claim, based on a different deemed date, had any bearing on the current proceedings.

The court was tasked with resolving several critical legal issues. It needed to decide whether there could be multiple deemed dates of injury and, if so, how to determine the appropriate date in this case. Furthermore, the court had to consider the relevance of the discontinuance of the first claim and how it affected the current determination. Another significant issue was identifying the employer who was most responsible for the aggravation of Mr McLuckie's skin cancer, in line with the statutory provisions and principles established in Federal Broom Co Pty Ltd v Semlitch. The court also had to consider whether the requirement to serve all relevant medical reports under the Workers Compensation Commission Regulation 2010 was complied with.

The court found that the Arbitrator had not adequately addressed the issue of multiple deemed dates of injury and had failed to properly consider the relevance of the discontinuance of the first claim. The court emphasised the importance of adhering to the statutory requirements, including the need to serve all relevant medical reports. It was noted that the determination of the employer most responsible for the aggravation of the disease should be made in accordance with the principles set out in Federal Broom Co Pty Ltd v Semlitch. Consequently, the court revoked certain paragraphs of the Arbitrator’s determination and remitted the matter to another Arbitrator for re-determination. The court also clarified that the name of the seventh respondent should be Readymix Emoleum Services Pty Ltd. Each party was ordered to bear their own costs of the appeal, while the costs of the first and second arbitrations would follow the outcome of the second arbitration.